THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Acq. Appeal No.D-35 of 2022

Before:

Mr. Justice Shamsuddin Abbasi

Mr. Justice Amjad Ali Sahito

Appellant: Imam Ali Brohi through Mr. Ahmed Bux Abro, Advocate.

Respondents: Mukhtiar Ali Brohi and others.

Date of hearing: 02.11.2022

Date of Order: 02.11.2022

JUDGMENT

AMJAD ALI SAHITO, J.- Being aggrieved and dissatisfied with the Judgment dated 13.10.2022 recorded in favour of the respondents/accused No.2 & 3 by the learned I-Additional Sessions Judge, (MCTC), Larkana in Sessions Case No. 324/2020 arising out of FIR No.01/2020 for the offence under sections 302 & 34 PPC registered at Police Station Rasheed Waggan, whereby the respondents were acquitted from the charge, hence Complainant/appellant has filed the instant Criminal Acquittal Appeal.

2. The crux of the prosecution case as per FIR lodged on 10.01.2020 by complainant Imam Ali are that his brother Muhammad Ayoob had a dispute with accused Nazir alias Raja over a plot, on the day of incident on 09.01.2020, Complainant alongwith Muhammad Ayoob, Ali Gul and his nephew Sadam Hussain were available in front of their house, when at about 02:30 pm, they saw and identified accused, Nazeer alias Raja, Khan Muhammad, Mukhtiar and Huzoor Bux duly armed with pistols came there and accused Nazeer alias Raja made straight fire from his pistol upon Muhammad Ayoob with intention to kill him; accused Khan Muhammad also made straight fire from his pistol upon Muhammad Ayoob; accused Mukhtiar also made straight fire from his pistol upon Muhammad Ayoob; accused Huzoor Bux also made straight fire from his pistol upon Muhammad Ayoob. Thereafter, Muhammad Ayoob fell down while receiving injuries and blood was oozing, subsequently, he died. Hence the present F.I.R.

3. The learned trial Court after framing the charge recorded evidence of the P.Ws available as Ex.21 to 34 respectively and after hearing the parties acquitted respondents No.2 & 3.

4. After completing the investigation, Investigation Officer submitted the challan and after completion of all the legal formalities, the trial court framed the charge against the accused/respondents, to which they pleaded ‘not guilty’ and claimed to be tried.

5. At the trial, to establish accusation against the accused, prosecution examined P.Ws at Ex.21 to Ex.35 respectively. The learned trial Court recorded the statement of the respondents/accused under Section 342 Cr.P.C, wherein they denied the prosecution allegations leveled against them.

6. The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, acquitted the respondents/accused vide judgment dated 13.10.2022. The acquittal recorded by the learned trial Court has been impugned by appellant Imam Ali Brohi by way of this acquittal appeal.

7. It is contended by the learned counsel for the appellant/complainant that the learned trial Court has not properly appreciated the material available on the record; that the prosecution has proved its case against the respondents beyond reasonable doubt; and, that the impugned order passed by the learned trial Court is illegal and result of misreading and non reading; that the learned Trial Court has committed error in facts and law while passing the impugned judgment. As there is direct evidence available on record connecting the accused with the commission of offence; that the appellant / complainant and his witnesses produced credible and unimpeachable oral evidence respecting commission of a serious offence under section 494 P.P.C particularly in preliminary statements, which is enough to prove the charge against the respondents/accused. He, therefore, prays that the appeal may be allowed and the impugned judgment may be set aside.

8. We have heard the learned counsel for the appellant and have gone through the material available on record.

9. The perusal of the record reveals that there are material contradictions in the evidence of the complainant and his witnesses. It appears from the record the prosecution has failed to recover the crime weapon allegedly used by accused Khan Muhammad in the murder of the deceased, not only that the police has also failed to enquire about the weapon from the accused Khan Muhammad, police has also not furnished any plausible explanation for the recovery of the said weapon, owing to which Forensic Science Examiner could not issue any report. As far as the recovery of crime weapon and empties made from accused Mukhtiar is concerned, the FSL report at Ex.34/E reveals that 30 bore pistol was recovered from accused Mukhtiar was marked as “B”. The examiner opined that pistol and bullets were dissimilar, no crime empty bullet marked as “C1, C3 & C4” were found fired from pistol marked as “B”, in view of non matching of striker pin marks, breech face marks and ejector marks.

10. We have considered the submissions of learned counsel for the appellant and perused the record. From the perusal of judgment passed by the trial Court, it appears that the same is speaking one and does not suffer from any interference by this Court. In these circumstances, the learned trial Court was right to record the acquittal of the private respondents by extending them the benefit of the doubt and such acquittal is not found to have been recorded in an arbitrary or cursory manner, which may call for interference by this Court.

“ In case of The State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Apex Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and the heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result in a grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findingsare perverse,arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

11. We are fully satisfied with the appraisal of evidence done by the learned trial Court and are of the view that while evaluating the evidence, the difference is to be maintained in an appeal from conviction and acquittal appeal and in the latter case, interference is to be made only when there is a gross misreading of evidence resulting in miscarriage of justice. Learned counsel for the appellant failed to disclose any misreading and non-reading of evidence. In the case of Muhammad Zafar and another v. Rustam and others(2017 SCMR 1639), the Hon’ble Supreme Court of Pakistan has held that:-

“We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents No.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/appellant and learned Additional prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos. 2 to 5 which reasons have not been found by us to be arbitrary, capricious of fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well-settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed”

12. The sequel of the above discussion is that we are satisfied with the appreciation of evidence evaluated by the learned trial Court while recording the acquittal of the respondents/accused persons by extending them benefit of doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed in limine.

JUDGE

Manzoor